The period of President Yanukovych’s presidency, from early 2010 until now, has already produced enough concrete action on which to judge the governing regime’s impact on democracy in Ukraine. There are five areas in which democratic regression has been identified: political freedoms, judicial independence, constitutional reform, freedom of speech and relationships with the international community.

Level of political freedom

Freedom House, a U.S.-based non-governmental organization that conducts research and performs advocacy in the area of global democratic development, reports that in 2011 Ukraine took a huge step backwards with respect to political rights. The organization’s experts cite pressure on opposition, the politicization of the courts, encroachment upon freedom of speech and repression against protesters among the principal indicators.

These, among other factors, culminated in Freedom House downgrading Ukraine to only “partly free.” Ukraine’s tumble in the ratings, which started two years ago shortly after Yanukovych became president, has been one of the most severe in the history the rating – by the end of 2011 Ukraine had dropped 13 points.

People First Comment: In Russia they call it “managed democracy,” in Ukraine they do not even bother to give it a name. Ukraine is rapidly becoming a totalitarian state with the trappings of democracy however what more did the nation expect? Party of Regions is hardly brimming with young and dynamic political thinkers. Those at the top were raised in the latter years of the Soviet system when corruption was at its highest and they learned from those who finally brought about the end of the USSR. At least the Soviet system had an ideology, whilst this regime has no philosophy, no manifesto, no legal mandate and no legitimacy… but when did that ever stop totalitarian politicians?

Effective and independent judiciary

The independence and professionalism of Ukrainian courts at various levels raises serious doubts domestically and abroad. Verkhovna Rada Human Rights Commissioner Nina Karpachova claims that nearly 33 [ercemt of all court judgments go unenforced in Ukraine; even the rulings of the European Court of Human Rights often go unimplemented. The ombudsman believes that courts and law enforcement agencies regularly misuse the right to arrest.

PACE has also criticized Ukraine’s judicial system. EU representatives have often cited misuse of detention, sentencing and the lack of balance between prosecution and defence as key problems within Ukraine’s legal system that threaten the stability of the country. PACE experts also fear that the procedures governing the appointment of judges in Ukraine undermine the principle of independence of the courts and that the procedure of appointing members of the High Council of Justice contravenes with the principle of democratic balance through power distribution).

The government has repeatedly claimed to be willing to reform the judiciary. In particular, President Yanukovych recently introduced a new Criminal Code, which was approved by parliament in the first reading. Andriy Portnov, presidential adviser and head of the Presidential Administration’s Main Office for Judicial Affairs, informed that the new Criminal Code improves court proceedings, optimises preventative measures and introduces house arrest, new time periods for investigations and the opportunity for trial by jury. Only an honest political will from those in power can improve the situation with the system of justice.

People First Comment: It does not really matter how good the legislative base of a nation is if the prosecutors and judges are working hand-in-glove with the regime to ensure that they always win. Statistically Ukraine has one of the most ‘effective’ prosecution services in the world winning over 92 percent of all the cases submitted to the courts which is a clear indication that there are serious flaws in the justice system. The regime’s plan to introduce a new criminal code is simply window dressing as ‘justice’ is clearly not the intent.

Changes to the constitution

The government’s efforts to amend the constitution have given the opposition and experts reason to criticise the President and his Administration. They are confident that the current authorities want use the rewriting of the Constitution to stay in power; even if they completely lose the support of the people. One possible scenario is a new constitutional provision for the President to be elected by parliament; with broader authority awarded to the head of state. The government notes that the Constitution requires some adaptation in order to meet with present political demands, including those made by EU and it is suggested that this was the motivation behind the President’s order to establish a Constitutional Assembly – signed in late January.

So far the opposition has refused to cooperate with the Constitutional assembly claiming that any future participation would be contingent upon the fulfilling of demands from Europe. Former President Leonid Kravchuk and the head of the scientific expert sub-group of the Constitutional Assembly have jointly stated that the body’s function will be to edit rather than rewrite the Constitution. However, regardless of the author, an amended Constitution can only be approved by the people of Ukraine, via their representatives in the Rada.

Opposition leader Valentyn Nalyvaichenko, head of the ‘Our Ukraine’ political party, suggests that the opposition cannot support the Constitutional assembly as it represents only the interests of those in power rather than the people of Ukraine. However he adds, the united opposition is able to provide a vision for new Constitutional provisions, designed to make Ukraine as a modern democratic European state.

People First Comment: The current constitution most certainly has its flaws but it is not an unworkable document, inconvenient maybe, but then any document that restricts the power of the political class in favor of the people should be inconvenient. The question is why the current regime wants the changes. It has been clear since the ‘election’ that the regime is perfectly capable of amending any law that does not suit its purpose therefore why the charade? There is no point wasting time and public money on a review of the constitution until Ukraine has a legal system to which all are subject. If the Queen of England is subject to the laws of England and the US president is subject to the laws of the USA why should this regime be any different?

Freedom of speech

At first glance the 2011 freedom of speech rating from Reporters Without Borders appears to show a slight improvement for Ukraine last year. Unfortunately this may in part be a statistical illusion produced by the significant worsening of situations in Africa with which Ukraine is compared. Compared to a 2010 ranking of 131st place out of 179 countries, Ukraine now sits between Peru and Cambodia in 116th. It is possible that Ukraine’s freedom of expression is experiencing improvements in some areas: Ukrainian media experts note that there were ten times more programmes featuring socially important taboo subjects on TV in 2011 than there were in the previous year.

The Ministry of Foreign Affairs and Party of Regions were quick to capitalize on the improvement in the ranking with deputies such as Olena Bondarenko claiming that there is no more censorship and restrictions of the freedom of press in Ukraine than in developed democratic countries.

People First Comment: The media in Ukraine have total freedom to write whatever they like… but not if they want to get it published. Censorship may not involve editors telling journalists what to write but journalists fully understand that if they want to feed their families they have to tow the line. Those that have resisted go hungry. However, one has to question why these men of power with all their wealth and bodyguards have such fragile egos as to be upset at the writings of a lowly journalist. What exactly is it they are so frightened of? The new law banning all comment on political figures and their families is nothing more than state sponsored gagging to prevent the reporting of the regime’s plunder.

Global concern over the state of democracy in Ukraine

Across Europe and the Americas concern has been consistently voiced regarding the current state of democracy in Ukraine. A report from James Clapper, director of a prominent U.S. intelligence office, entitled ‘Ukraine at a crossroads: What’s at Stake for the United States and Europe?’ argues strongly that Ukrainian democracy is under siege and the Ukrainian authorities are drifting closer to authoritarianism. The report, which was delivered to the U.S. Senate, highlighted the ongoing persecution of opposition members and administrative pressures on the media.

In late January the Parliamentary Assembly of the Council of Europe delivered a resolution on the state of democracy in Ukraine which demanded that the Ukrainian government bring the articles under which former prime-minister Tymoshenko was convicted into compliance with European standards and dismiss the charges against other ex-state officials. Shortly afterwards Stefan Fule, European Commissioner for Enlargement and European Neighborhood Policy, expressed his disappointment over the refusal of Verkhovna Rada to decriminalise the articles relating to the Tymoshenko case.

Both the United States and Europe are deeply disturbed by the increasingly authoritarian actions of Ukraine’s governing regime. The governing authorities themselves however, seem confident that their policies are progressive and beneficial for the development of a democratic society. At the same time the people of Ukraine have less and less trust in their government and are preparing to actively protect their rights.

People First Comment: There is no direct or even indirect link between the actions of this regime and the will of the people. Parliament is no longer accountable to anybody. There is no transparency in any aspect of the government’s work and the justice system has all but failed. The people have singularly lost faith in the entire political system and democracy is now a ‘dirty’ word, therefore it is safe to say that Ukraine is no longer a democracy and is heading in the wrong direction, very quickly indeed.

Whilst the international community demand reform, frankly this too is an empty barrel. There is nothing that can be reformed as those who run the system have neither the moral virtue nor the desire to change a system that feeds their personal interests so effectively. Sadly, without major intervention Ukraine may, just like the former Soviet Union, implode as a result of what has become institutionalised financial plunder. Let us hope that the nation’s creditors demand that the international bank accounts of those that have illegally benefited from corruption and malpractice are seized to pay the nation’s debts, otherwise it will be left to the innocent to pay debts in which they took no part and that would be the final injustice.

Viktor Tkachuk is chief executive officer of the People First Foundation, which seeks to strengthen Ukrainian democracy. The organization’s website is: www.peoplefirst.org.ua and the e-mail address is: [email protected]